Release of a Pharmacist on Bail When Charged with Serious Drug Related Crimes?

Joseph L. Fink III, BSPharm, JD

Published Online: Wednesday, April 11, 2012

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A pharmacist indicted for the illegal distribution of oxycodone seeks bail.

Issue of The Case

A pharmacist was indicted by a federal grand jury for illegally distributing oxy­ codone and had a detention hearing at which he did not oppose the government’s efforts to retain him in custody. He subse­ quently filed a motion to be released on bail. Should this pharmacist be granted release pending his trial?

Facts of The Case

The pharmacist in a mid­Atlantic state was arrested approximately 2½ weeks after being indicted by the grand jury. Following his arrest, the government moved to request that the court order the pharmacist detained until trial. An order of temporary detention was entered by the court and a hearing on the issue of detention was scheduled for 3 days later. The attorney representing the govern­ ment filed a briefing memorandum with the court in support of the pharmacist being detained in jail until the trial. The defendant did not contest the detention pending trial and the court entered an order of detention.

Nearly a month later, a hearing was scheduled on a motion filed by the defen­ dant pharmacist seeking to be allowed to post bail and be released from jail until the trial was held. The parties agreed that the evidence for this hearing would be pre­ sented by proffer.

A proffer is a written agreement between federal prosecutors and defen­ dants charged with a crime permitting those people to give the government information about alleged criminal activi­ ties with some degree of assurance that they will be protected against prosecu­tion. This differs from a complete grant of immunity in that it is much more limited in scope.

At the conclusion of the hearing, the judge ordered the matter continued while the probation office obtained some addi­ tional relevant information. This meant that the defendant remained in custody. Later, expanded investigative work led to additional criminal charges.

The judge subsequently returned to the matter of the motion by the defendant pharmacist to be released on bail.

The Court’s Ruling

The court denied the pharmacist’s motion to be released on bail while awaiting trial.

The Court’s Reasoning

The decision whether to release a per­ son charged with federal crimes while awaiting trial is governed by a federal statute known as the Bail Reform Act. The goal of this statute is to “ensure that the interests of the public and the defendant are carefully contemplated before release or detention is ordered.” The standards under this statute are that the court must order that the defendant be detained in jail if it concludes that either “there is clear and convincing evidence that no combination of condi­ tions will ensure the safety of the community” if the defendant is released, or “the preponderance of the evidence demonstrates that no combination of con­ ditions will ensure the appearance of the defendant as required.”

The court concluded that this was a situation where the record of the case presented probable cause that the defen­ dant had committed an offense for which a maximum term of imprisonment under the Controlled Substances Act was likely. When that circumstance exists, the fede­ ral statute creates a “rebuttable presump­ tion that no combination of conditions will reasonably assure the safety of any other person in the community or assure defendant’s appearance at trial.”

A rebuttable presumption means that the starting point is a supposition that a situation is so unless evidence is presented otherwise. Thus, in this case, the pre­ sumption shifts the burden of proof to the defendant to rebut the presumption and establish that he would not pose a threat to the community and that he will appear for the later scheduled trial.

The court noted that “the defendant is charged with the unlawful distribution of Oxycodone, a narcotic that poses serious danger to the community. The weight of the evidence against defendant is strong and reflects his illegal distribution of Oxycodone over an extended period of time. For this conduct, defendant is facing a substantial period of incarceration and [this] creates an incentive for defendant to flee before trial.”

The court further pointed to the seizure from his home at the time of his arrest of more than 600 oxycodone tablets in man­ ufacturer’s packaging (not prescription packaging), approximately $160,000 in cash, a money counting machine, 3 hand­ guns, and a notebook listing assets val­ ued at $1,850,000 held in bank accounts plus another entry identifying more than $1,000,000 in safes at his parents’ home.

All that, in the view of the court, pro­ vided the financial means to flee the jurisdiction before trial. Those assets, added to the fact that he had prior convic­ tions “related to dispensing medications improperly and fraudulently,” led the court to deny his release on bail pending trial. PT

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy in Lexington, Kentucky.